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Let's Stop the Blame Game - the Argument for No-Fault Divorce

17/09/2015 12:17 BST | Updated 15/09/2016 10:12 BST

'Nobody likes a snitch' is how the playground saying goes.

Yet 'snitching' is what you must do in the UK in order to get divorced, without having to prove that you and your spouse have been living separate lives for a minimum of two years (or five if your spouse will not consent to the divorce).

To be able to divorce after one year of marriage, adultery or unreasonable behaviour must be cited, and these behaviours must be shown to have caused the marriage to have irretrievably broken down.

With unreasonable behaviour being the most frequently used ground, examples of such conduct have ranged from domestic abuse to the respondent not taking a big enough interest in the petitioner's career. Whatever the accusation, the concept is always the same: the petitioner is pointing the finger at their ex-spouse and claiming that their behaviour is the reason behind the divorce.

At a time when emotions are already running high, it is certainly questionable that the law encourages ex-spouses to 'stir the pot' by requiring them to place blame on their ex-partner.

Explaining the rationale behind the law, Sir Nicholas Wall states: "In the nineteenth century [...] divorce was a matter of social status - it mattered whether you were divorced or not, and if you were, it was important to demonstrate that you were the "innocent" party."

Today, with 42% of marriages estimated to end in divorce[1], surely this reasoning is neither necessary nor appropriate.

Divorce no longer attracts the same negative social connotations that it once did and therefore the quest for innocence is somewhat redundant. As Sir Justice Munby correctly questioned: "Has the time not come to remove all concepts of fault as a basis for divorce and to leave irretrievable breakdown as the sole ground?"

Baroness Hale has been the most recent figure to answer this question in the affirmative by reiterating her call for the introduction of no-fault divorce - one that she initially made some 20 years ago.

One of the main arguments against the blame game is that it is effectively pointless.

Apart from allowing one spouse to appear 'innocent' and from it allegedly 'discouraging divorce' (a theory never necessarily proven), once the finger has been pointed there are no further repercussions. Therefore, by way of example, if adultery is alleged then this will have no bearing on the financial order that a court makes.

Another problem with fault-based divorce, and in particular with the unreasonable behaviour ground, is that it is far too broad.

As mentioned above, it can catch all manners of behaviour; indeed, it seems unfair to tarnish a spouse who does not pay their partner enough attention with the same brush as a violent domestic abuser.

It also does not cater for situations where there has been unreasonable behaviour from both spouses, or adultery by one spouse and unreasonable behaviour by the other. In this situation, which spouse should be labelled as the innocent party? Surely time is wasted and emotions are drained by trying to agree who the innocent party is.

Laying the blame on one spouse is not appropriate when a couple have simply grown apart and fallen out of love. It seems unjust to force one party to make an accusation of unreasonable behaviour in this situation, especially as they are unlikely to actually agree with the claims they are making.

The government is currently attempting to get more couples to use mediation by making mediation information meetings (MIAMs) compulsory before beginning court proceedings. They are also offering a complimentary mediation session to couples where one spouse qualifies for legal aid.

The Justice Minister, Simon Hughes, has explained that mediation allows people to avoid the confrontational and stressful nature of court. But, if the government's aim is to reduce confrontation, surely fault-based divorce must be abolished? If the starting point of divorce is to hold one spouse accountable for the marital breakdown, this does not pave the way for an amicable divorce procedure. If mediation is truly going to be a success, then perhaps a no-fault ground allowing divorce after a year is required.

[1] http://www.ons.gov.uk/ons/rel/vsob1/divorces-in-england-and-wales/2011/sty-what-percentage-of-marriages-end-in-divorce.html

Katie McCann is head of family law and in-house counsel at Kuits Solicitors in Manchester City Centre. She has a special interest in resolving high value relationship breakdown disputes.